and 140 New York State Reporter to pay a decedent's debts, as outlined in the Code of Civil Procedure. Clift v. Moses, 116 N. Y. 155, 22 N. E. 393. In confirmation of this it is to be noted that the power of sale is merely a general one, and therefore would only be used to pay debts. Where a provision of a will is thus capable of two constructions, that which is the more natural should be adopted, rather than one which is supposed to indicate an intent to change the regularly established methods of the management of a testator's estate. A similar conclusion has been reached in Matter of Rochester, 110 N. Y. 165, 17 N. E. 740, and in Sweeney v. Warren, 127 N. Y. 431, 28 N. E. 413, 24 Am. St. Rep. 468. The only effect that could be given to this language conferring a power of sale was that given in Taylor v. Dodd, supra, where it was held that such language indicated an intention to exonerate the specific legacies from the payment of the debts; but in that case the general legacies had to contribute to the fund realized from the sale of the realty. I am unable, therefore, to find any intention on the part of the testator to exonerate the stocks of which he might die possessed from the payment of his debts. I appreciate, however, that at the present time there is a great depression in the value of securities, and, although these stocks are liable for the payment of the claims of creditors, it would be proper for a provision to be made that the executors be not required to sell them until some more favorable opportunity. Let decree be presented accordingly. Decreed accordingly. MAYER v. DAVIS et al. (Supreme Court, Appellate Division, Second Department. November 22, 1907.) BASTARDS-ILLEGITIMACY-SUFFICIENCY OF EVIDENnce. Where illegitimacy of the issue of a married woman is asserted, it must be incontrovertibly shown that there was no such access as could have enabled the husband to be the father. [Ed. Note. For cases in point, see Cent. Dig. vol. 6, Bastards, §§ 9, 10.] On reargument. Judgment below reversed, and new trial granted. For former opinion, see 119 App. Div. 96, 103 N. Y. Supp. 943. Argued before HIRSCHBERG, P. J., and HOOKER, RICH, MILLER, and GAYNOR, JJ. Harry E. Lewis, for appellant. I. R. Oeland, for respondents. GAYNOR, J. When this case was first disposed of by us I wrote: "If 280 days be taken as the period of gestation, there were within it 39 days of possible sexual access of the appellant's parents before his father went to the hospital, and if 300 days be taken as the period allowed from the latest opportunity of access to delivery, there were 59." In this I made the large error of 47 days. I should have written "before his father died," instead of "before his father went to the hospital"; and he was in the hospital 47 days. The result is that there was no time of possible access if the period of 280 days be taken (for there was no access during the 47 days the deceased was in the hospital), and only 12 days if the period of) 300 days be taken. During these 12 days the deceased was living in the household of the mother of the two tenants in common other than the appellant, as pointed out in my former opinion. The purport of her testimony was that the wife of the deceased never visited him there. But she says that she was not always at home, and could not tell how often she went out. Moreover she was testifying for her children, and to be classed as a biased witness. The burden was on the respondents to show incontrovertibly-by "irrefragable proof" (Caujolle v. Ferrie, 23 N. Y. 108), i. e., so clearly and certainly as not to admit of denial, dispute or controversy (see "Irrefragable," Century Dictionary)-that such access did not take place, and this they did not do. It would be hazardous to say there was no access. The judgment should be reversed both on the law and the facts. Judgment reversed on the law and the facts on reargument, and new trial granted; costs to abide the final award of costs. All concur. MCKEEVER v. SUPREME COURT I. O. F. (Supreme Court, Appellate Division, Second Department. 1. PROCESS-PROOF OF SERVICE-ADMISSION-SUFFICIENCY. November 22, 1907.) In an action against a foreign insurance company, a written admission, signed by the Superintendent of Insurance, of service "of process in behalf of James J. McKeever, as administrator," etc., is fatally defective, as proof of process, as it does not identify the process served. 106 N.Y.S.-66 and 140 New York State Reporter 2. COURTS-MUNICIPAL COURT-JURISDICTION-PLEADING. A complaint alleging that defendant is a foreign corporation, but not alleging that it has an office in the city of New York, does not give the Municipal Court of that city jurisdiction; its jurisdiction of actions against foreign corporations being expressly limited to those having offices in the city, by Laws 1902, p. 1488, c. 580, § 1, subd. 18. 3. CORPORATIONS-FOREIGN CORPORATIONS-ACTIONS-JURISDICTION. Proof that a defendant foreign insurance company is an insurance corporation, and that it has filed a written appointment of the Superintendent of Insurance as its attorney to receive service of process against it, required by Laws 1892, p. 1945, c. 690, § 30, is necessary to give jurisdiction of an action against it by admission of service of process by the Superintendent of Insurance. 4. SAME PROCESS-STATUTORY PROVISIONS. Insurance Law, Laws 1892, p. 1945, c. 690, § 30, compelling foreign insurance companies to file the written appointment of the Superintendent of Insurance as attorney to receive service of process against them as a condition precedent to doing business in the state, was intended to provide a way of obtaining personal service on a foreign insurance company, and such service should be deemed to be made within the territorial jurisdiction of the court issuing the process. Appeal from Municipal Court, Borough of Brooklyn, Second Dis trict. Action by James J. McKeever, administrator of Fannie McKeever, against the Supreme Court of the Independent Order of Foresters. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered. Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, HOOKER, and MILLER, JJ. John H. Corwin, for appellant. MILLER, J. The defendant appeals from a judgment of the Municipal Court rendered upon its default, and asserts that the plaintiff failed to show personal service of the summons upon it. The only proof of service was a written admission, signed by the Superintendent of Insurance, of service "of process * * *in behalf of James J. McKeever as administrator," etc. But this alleged admission of service was fatally defective, as it did not identify the process served. The complaint alleges that the defendant is a foreign corporation, but there is no allegation that it has an office in the city of New York, as it would have to have in order to give the Municipal Court jurisdiction (Municipal Court Act, Laws 1902, p. 1488, c. 580, § 1, subd. 18); nor is there any proof that it is an insurance corporation, or that it has executed and filed the written appointment provided for in section 30 of the insurance law (Laws 1892, p. 1945, c. 690). We do not assent to the proposition, argued by the appellant, that service of the summons on the Superintendent of Insurance at Albany would not give the court jurisdiction in any case, for not being service within the city, but think that such service would have to be deemed service within the city, in case the other jurisdictional facts were shown. In other words, said section 30 of the insurance law was intended to provide a way of obtaining personal service on a foreign in surance corporation, and such service should be deemed to be made within the territorial jurisdiction of the court issuing the process. But this judgment must be reversed for failure to show the jurisdictional facts hereinbefore stated. Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur. (121 App. Div. 597.) SHAW v. FELTMAN et al. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. PLEADING-Demurrer-INFERENCES. On demurrer, plaintiff is entitled to have the facts stated in his complaint taken as true and all reasonable inferences resolved in his favor. 2. MASTER AND SERVANT-INJURY TO SERVANT-COMPLAINT ASSUMPTION OF RISK. The complaint in an action for injury to a servant need not show that the accident resulted from a risk not assumed by him. [Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 844-847.] 3. SAME-NEGLIGENCE OF FELLOW SERVANTS. Nor need it show that the accident was not due to negligence of fellow servants. [Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 837.] 4. SAME-NEGLIGENCE. A complaint alleging that plaintiff was employed by defendants to work in a kitchen in a building owned and controlled by them; that a skylight over the kitchen and the glass in it were in a defective, ruinous, and dangerous condition, of which defendants had notice; and that a piece of glass fell from the skylight because of such condition and came in contact with and injured plaintiff-sufficiently shows negligence and absence of contributory negligence. [Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 816-823, 825.] Appeal from Special Term, Kings County. Action by Ellwood Shaw against Charles L. Feltman and another. Defendants' demurrer to the complaint was overruled, and they appeal. Affirmed. See 91 N. Y. Supp. 114. The following is the opinion of Kelly, J., at Special Term: The parties occupied the relation of master and servant, and the plaintiff, the servant, sues the defendants, the masters, for damages resulting from their alleged negligence. On a demurrer he is entitled to have the facts stated in the complaint taken as true, and all reasonable inferences are to be resolved in his favor. The defendants say the complaint does not state facts sufficient to constitute a cause of action, in that there is no sufficient allegation of negligence or lack of contributory negligence. Defendants claim that the complaint should contain averments that the accident did not result from a risk assumed by the servant and that the accident was not due to the negligence of fellow servants. These last two contentions are clearly wrong. Plaintiff is not obliged to plead either of the propositions advanced. They are matters for defendant to allege or to prove on the trial. Rooney v. Brogan Construction Co., 107 App. Div. 258, 95 N. Y. Supp. 1. There are decisions holding that a complaint in a negligence action is good, without an and 140 New York State Reporter allegation of absence of contributory negligence, and that defendant must plead in his answer that the negligence is the negligence of fellow servants. I do not agree with these decisions, but I refer to them as evidencing the view which the courts, take of these matters; the object being to arrive at a just determination of the action on the merits. Plaintiff must allege that defendants were guilty of negligence, but he is not called upon to plead all the details of the evidence and negative every possible defense which may be interposed. This demurrer was stricken out as frivolous, but the order was reversed by the Appellate Division. Shaw v. Feltman, 99 App. Div. 514, 91 N. Y. Supp. 114. The Appellate Division did not, however, pass upon the sufficiency of the complaint. Judged by the standards laid down in innumerable decisions, and giving the plaintiff the benefit of the facts and reasonable inferences, I think the complaint is good. He says he was employed by the defendants to work in a kitchen in a building owned and controlled by defendants in Coney Is land; that there was a skylight over the kitchen, and that the skylight and the glass therein were in a defective, ruinous, and dangerous condition, of all of which the defendants had notice; that a piece of glass fell from the skylight, coming in contact with plaintiff and injuring him. It may be that the mere allegation that the glass fell, without a distinct averment that it fell by reason of the defective and dangerous condition alleged, would not be sufficient; but this very fact is set forth in paragraph 8. It is there stated that the glass fell because of the defective and ruinous and broken condition in which it was maintained by defendants, with full knowledge, a condition described as "dangerous." A master cannot put his servants to work in a place known to him to be dangerous, unsafe, and with defective skylights and ceilings liable to fall and injure the employé, without incurring liability. If the servant knew of the condition, if he assumed the risk, if he was guilty of contributory negligence, if it was a risk incident to his employment, or if the accident happened by reason of his own or his fellow servants' negligence, he cannot recover; but all these things are matters of proof. I think the complaint is good. Demurrer overruled, with leave to defendants to answer upon payment of costs. Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ. Joseph M. Gazzam, Jr., for appellants. PER CURIAM. Interlocutory judgment affirmed, with costs, on the opinion of KELLY, J., at Special Term. DAVIDSON v. NEW YORK CITY RY. CO. (Supreme Court, Appellate Division, First Department. November 22, 1907.) 1. APPEAL-SETTLEMENT OF CASE-MATTERS INCLuded. A case on appeal may properly include matters indicating the attitude of the court in making rulings upon proffered testimony necessary to a full understanding of how questions respecting admissibility of evidence arose, and matter stating a ruling as to what will be left to the jury. a request of counsel relating thereto, and the disposition of the request: but, where the ruling and exception otherwise sufficiently appear, remarks of the court and speeches of counsel should not be included. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 88 2483-2489.] 2. SAME. In settling a case on appeal from a judgment against a railway company for personal injuries to an infant, an amendment is proper, as presenting part of the atmosphere of the case, which relates to the presence in court of the infant plaintiff in a maimed and mangled condition, without the |